Freedom of expression?

[Parrot]

I've been trying to find out information about this for a little while, but I can't seem to put together a Google search that answers it for me. I'm hoping maybe some of you here know the answer.

What I'm talking about is the "Anti Terrorism Act", part of the Criminal Code. Specifically section 320.1 which allows the courts to order the deletion of online hate propaganda from any computer in Canada, regardless of where the person who wrote it lives. (Is hate propaganda really a huge focus in the "war on terrorism"?)

As I understand it, this applies to propaganda against any religion, race, colour, ethnicity or nationality.

Now I'm not a fan of racism in any way, shape, or form. But I do believe in freedom of expression, and this is clearly a violation of section 2 of our Charter of Rights and Freedoms.

As I understand it, such laws can be put into place as long as they're declared as an exception under section 33 and given a maximum life-span of 5 years.

Was this law declared under section 33? I can't seem to find information on that.

[Topaz]

Very good question and I hope someone comes up with the answer! If you have been watch tv, especially the US that is the topic that's on the forefront since Imus said what he said. Let say you have 'freedom of expression' but what if that expression hurts someone else? The only thing I would object to is ,the government invading my computer!

[FTA Lawyer]

You have to go a long way down the road before ever getting to s.33.

I've explained on this board many times that the Charter is designed to internally allow Charter breaches...and your question gives me one more chance to explain how that works.

The rights and freedoms protected in the Charter are not absolute...and indeed are all subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" as set out in s. 1 of the Charter.

So, as long as the limit is prescribed by law (i.e. in a written piece of legislation), is imposed for a "pressing and substantial" (i.e. sufficiently important) reason, and the means of the limit are reasonable in proportion to the importance of the objective, then s. 1 "saves" a law which otherwise breaches the Charter.

For a limit to be "reasonable in proportion to the importance of the objective" it must be fair and not arbitrary, carefully designed to achieve the objective, and rationally connected to the objective. It must also impair the Charter right as little as possible (i.e. least restrictive alternative) and there must be proportionality between the benefit obtained by the limit as compared to the harm caused to the Charter right being limited.

That is the gist of 25 years of Charter law as it relates to s.1 in 3 paragraphs. Obviously, there are all kinds of nuances, but this shows you the general idea.

Now, if someone believes that their Charter right is unlawfully limited by a law, they have to challenge the law in court. If the court finds a breach, does the s. 1 analysis above and decides that the breach cannot be saved, then the law has to be struck for being unconstitutional. It is only at this point that a government would need to resort to s. 33 to re-enact a law that has been struck (notwithstanding failure to comply with the Charter).

All of that being said, a government could enact a law with reference to s. 33 in a preemptive way, but that is political suicide so it will never happen.

So, with all of this in mind, now you can make some arguments about whether the limit to s. 2 should be saved under s. 1 for the law in question.

FTA

[Parrot]

Well that's pretty screwed up. That means that they can just ignore any of our rights at will. After all, nobody would propose a law if they thought it wasn't "demonstrably justified".

Now I'm really angry about this.

[BC_chick]

Section 33 just implies that the Charter is above all legislation and all laws must adhere to it. However, there is the notwithstanding clause which makes it all a moot point IMHO.

As it stands, you're correct. There is a very fine and undefined line between freedom of speech and inciting hatred. For example, the Mohammed cartoons which essentially claimed that all Muslims are terrorists, was found to be "freedom of expression" while Ernest Zundel's anti-semitic holocaust-denying was "inciting hatred."

Evidently, the line is drawn depending on whom you are targetting in your speech because somehow I can't see the same cartoon being categorised as freedom of expression had it targetted any other minority group. Just look at what happened with Imus.

[betsy]

What about this new Anti-Denial law by the UN?

It is now a crime to deny genocide. If the UN says it is genocide....you better believe it and don't question it!

[M.Dancer]

What about this new Anti-Denial law by the UN?

It is now a crime to deny genocide. If the UN says it is genocide....you better believe it and don't question it!

You don't say. Please go on.....

[BC_chick]

What about this new Anti-Denial law by the UN?

It is now a crime to deny genocide. If the UN says it is genocide....you better believe it and don't question it!

I also brought up Imus.

IOW, at the present time, the "fine line" between freedom of speech and inciting hatred is being blurred a lot more for Muslims than it is for any other victim of inappropriate forms of expression.

If you recall, parrot was talking about anti-terror laws.

[geoffrey]

As it stands, you're correct. There is a very fine and undefined line between freedom of speech and inciting hatred. For example, the Mohammed cartoons which essentially claimed that all Muslims are terrorists, was found to be "freedom of expression" while Ernest Zundel's anti-semitic holocaust-denying was "inciting hatred."

Great point, clear double standards. I think it's very difficult to ever put a limit on free speech. I don't think Zundel is a criminal, I don't support a thing he does, but he's not a criminal for speaking. I don't agree with Holocaust denial being a crime.

[BC_chick]

Great point, clear double standards. I think it's very difficult to ever put a limit on free speech. I don't think Zundel is a criminal, I don't support a thing he does, but he's not a criminal for speaking. I don't agree with Holocaust denial being a crime.

Depends on the nature of the denial. If denied in most of its entirety, holocaust-denial should be a crime because it is based on hatred-inciting principals. However, debating about its accuracy should be legal.

Either way, I'm just implying that the threshold is set a lot higher for any other minority groups than it is for Muslims. Case in point, many of the people who believe the cartoons were within their rights gasp at similar images printed in Middle-Eastern cartoons about Jews. What's the difference, really?

[Parrot]

Depends on the nature of the denial. If denied in most of its entirety, holocaust-denial should be a crime because it is based on hatred-inciting principals.

I'm going to have to strongly disagree with you on that. People should be able to hate, even if their hatred is not justified. And people should be able to promote their hatred as well. Yes, this means that they will convince some idiots to join them and they will be a general pain in the ass. But most of us are smart enough to see through their bull and denounce them.

I think if we're going to live in a free society that we should have access to all sides of any issue, no matter what the issue.

[FTA Lawyer]

Section 33 just implies that the Charter is above all legislation and all laws must adhere to it. However, there is the notwithstanding clause which makes it all a moot point IMHO.

Section 33 is the notwithstanding clause. I think you are a bit confused.

FTA

[FTA Lawyer]

Well that's pretty screwed up. That means that they can just ignore any of our rights at will. After all, nobody would propose a law if they thought it wasn't "demonstrably justified".

Now I'm really angry about this.

This is why we have judicial oversight of Parliament. The government can attempt to put forward whatever law it thinks is a good idea...whether it limits the Charter or not. The courts (and ultimately the SCC) will decide whether that law is "demonstrably justified" or not.

That all being said, if a government ever got the courage to use the notwithstanding clause, then it wouldn't matter how unconstitutional the SCC says the law is.

FTA

[Parrot]

This is why we have judicial oversight of Parliament. The government can attempt to put forward whatever law it thinks is a good idea...whether it limits the Charter or not. The courts (and ultimately the SCC) will decide whether that law is "demonstrably justified" or not.

Well, obviously they did a very poor job on that in letting this one past.

[BC_chick]

Section 33 just implies that the Charter is above all legislation and all laws must adhere to it. However, there is the notwithstanding clause which makes it all a moot point IMHO.

Section 33 is the notwithstanding clause. I think you are a bit confused.

FTA

Right. My bad.

It's been a long time, but I know one of the provisions had to do with the Charter being entrenched and above all law. Whichever one that is, along with provision 33, is what I was referring to as a moot point.

[geoffrey]

Depends on the nature of the denial. If denied in most of its entirety, holocaust-denial should be a crime because it is based on hatred-inciting principals. However, debating about its accuracy should be legal.

Either way, I'm just implying that the threshold is set a lot higher for any other minority groups than it is for Muslims. Case in point, many of the people who believe the cartoons were within their rights gasp at similar images printed in Middle-Eastern cartoons about Jews. What's the difference, really?

Strongly agreed, though I think we see things from the different side of this coin, it's clearly a double standard.

If your inciting hate (or perhaps I should better say inciting violence against a visible group), then yes that's a problem. But I don't think either the cartoons or Zundel were doing that.

Saying that 'the Holocaust never happened' isn't inciting hate, it's just being silly. Saying 'the Holocaust was justified' or 'the Jews invented the Holocaust to get away with persecuting others'... now that's a different story.

To be honest, I'm a little ignorant of the specifics of Zundel. Perhaps he did take things too far? I don't know.

Even still, deep down inside, I want to say that speaking violence shoudln't be illegal. I struggle with this one. People do have the power to not listen, or to rebuke their comments. Are we underestimating the moral reasoning of society by having such laws?

[Parrot]

Even still, deep down inside, I want to say that speaking violence shoudln't be illegal. I struggle with this one. People do have the power to not listen, or to rebuke their comments. Are we underestimating the moral reasoning of society by having such laws?

I'm not sure if the moral reasoning of society even comes into play here. I have a big problem with making laws based on speculations of what people might do given certain stimuli. That's a very dangerous road. Thought Police, anyone?

[M.Dancer]

As it stands, you're correct. There is a very fine and undefined line between freedom of speech and inciting hatred. For example, the Mohammed cartoons which essentially claimed that all Muslims are terrorists, was found to be "freedom of expression" while Ernest Zundel's anti-semitic holocaust-denying was "inciting hatred."

Great point, clear double standards. I think it's very difficult to ever put a limit on free speech. I don't think Zundel is a criminal, I don't support a thing he does, but he's not a criminal for speaking. I don't agree with Holocaust denial being a crime.

No he's not a criminal for speaking. In fact, none of his convictions have anything to do with speaking.